April 2011 - New move to reduce cost of patenting in Europe: EU unitary patent proposal adopted by EU commission

Following the failure in March 2011, for legal concerns raised by the European Court of Justice, of an overly ambitious and ill-prepared project to create both a European Patent Court, having final jurisdiction on all matters relating to European patents granted by the European Patent Office, effectively waving jurisdiction of the ECJ and joining EU and non-EU member states of the existing European Patent Organisation (which is an multilateral, intergovernemantal institution founded in 1973/79, NOT an EU institution) on all aspects of patent validity and enforcement, the EU commission has now published an utterly realistic proposal how to swiftly and effectively reduce cost of patenting in Europe, envisaging - realistically, I would dare say - an EU-wide, unitary effect of granted European patents by about 2013.

Letting ECJ`s jurisdictional monopoly in the EU unharmed, such EU unitary patent will be pragmatically bundling only the rights from (most) EU members states after grant of a normal European patent. Hence it is building on the established patent system, not needing amendment of the basic setting and contracts, and is taking profit of a provision foreseen in the European Patent Convention since 1973 in Art. 142, worked so far only by CH/LI ( a granted EP patent may only jointly designated the territories of Switzerland and the royalty of Lichtenstein and is subject to common, undivided jurisdiction for both territories). The `EU unitary patent ` will remain subject to the jurisdiction of national courts of the me from the non-EU members states aside acccordingly, however, any national court in the EU will decide on the EU part of the EU unitary part of a granted European Patent as a whole, leaving only the non-EU part of European Patent untouched. Effectively, this jurisdictional system is already practiced with Community - unitary - trademarks, a national courts decisions having mandatorily and immediately cross-border effect , which are granted by a true EU authority, in Alicante/Spain, however, whose litigation is vested with ordinary national courts) - cp. ECJ, case C-235/09, DHL Express France SAS v. Chronopost SA, decision from 12.4.2011 on the issue of unitary/crossborder effect of national court`s ruling.)

However, the path forward to this new, pramatic proposal has been opened by overcoming the highly contagious language issue, at which point most proposals on a Community/EU patent capsized over the past decades: Similiar to the EURO, the EU treaties allows of a subgroup of EU countries taking initiative, leaving those parties permanently opposing, aside as being non-interested parties - effectively, a streamlined proposal for a language regime favoring but the establihsed three languages of the EPO - D, F, E - and giving, at the request of the Eastern European Countries, the English language a dominant position as an extra translation requirement, has been adopted by all EU countries except Italy and Spain. The latter two have not joined the proposal, which has now entered the legislative process in the EU based on the `remainder` of the interested 25 EU countries. Hence it may be expected that a future EU unitary patent will allow of affordable patent protection in the vast majority of EU countries beside Italy and Spain (in the EU), and Switzerland and Norway (outside the EU). However, since Switzerland shares two (D,F) national/official languages with the EPO, and is anyway a signatory to the London agreement, a European Patent granted in any language of the EPO is automatically validated in Switzerland and requires but payment of annuity fees. - What is less known is that Switzerland, both for allowing of provisonal protection of pending European Patent Applications drafted in English, and further at the level of instigating procedure before the the new federal patent court with EP patents granted in English, does not mandatorily require translation from the English language but holds the Swiss public to be sufficiently fluent in the English language as to provide direct effect to such application/patent as if it were drafted in German or French.

The European Patent Office is set to administer, despite that it is not an EU authority, in future such unitary patent right, adopting the role of an external agent working for the EU on a honorary basis; this setting is undisputed so far by any interested party, and will vest the EPO with additional competencies, reaching out to the issue of patent enforcement and national jurisdiction on granted European Patents for the first time.

It should be noted that Italy and Spain have lodged a complaint with the European Court of Justice on applying the principle of enhanced cooperation to patents/intellectual property, wanting to force their national languages to be made further official languages of such EU unitary patent system.

Swiss Trademark Law -

BVG/ Swiss Federal Administrative Court, St. Gallen `Swatch` - notorious trademark, elder right effect/privilege - Decision: no, not applicable to domestic trademark right not being based on a first registration abroad - Source: GRUR 2011)

3. Legal Privilege: A new era in Swiss Legal Practice - Patent Attorneys vested with full legal privilege of attorneys-at-law

Notably, under the wording of the 2011 newly inaugurated Swiss Federal rules of court procedure under criminal and civil law, with some last clarifying amendments enacted by Swiss Parliament having taken effect on Jan. 1, 2013, under the statutes, Swiss Patent Attorneys explicitely enjoy the same legal privilege as do lawyers/attorneys-at-law; this includes for the first time full and uncompromised work-product protection by legal privilege, commensurate with e.g. UK or US law. Contact us if you want to have a read in the Swiss Legal texts, available in English directly from the Swiss Federal government`s server www.admin.ch .

We are newly cooperating with Nithardt.com, esp. in the area of patent laow ! Nithardt.com `s regional main office is located across the French border in Mulhouse, in direct proximity of the City of Basel; English is their natural language beside French. Due to our perfect complementarity in academic profiles, in view of highly interdisciplinary new research areas as e.g. in nanotechnology/polymer-borne photovoltaics/..., we offer you to work - if approved by you in writing - cooperatively for you, on a case-by-case Basis. You choose one head Office, the other firm is drawn in to work for that office as external Service Provider under an interfirm service agreement, observing all professional obligations of conflict of interest clearance, etc. You deal with one firm only! As being a large, established practice, Nithardt.com offers, in particular for larger corporate clients, full administrative support on IP matters.